Brandon: Supreme Court wetlands decision may compound confusion

While we lesser mortals tend to think legal decisions from the Supreme Court represent final, clear-cut answers to thorny issues, fact is they often only add to the murkiness.

Such appears the case with the court’s recent narrow decision on wetlands.

In a 5-4 split, the court sided with two Michigan property owners who had been denied permits to build on wetlands they own. The vote was one short of what legal observers say could have been a gutting of the federal Clean Water Act.

While the decision may represent a victory of sorts for landowners, legal analysts say there will still be confusion in interpreting regulations to determine if property has a connection to a navigable waterway. “There will be a lot of administrative headaches…(and) the reach of the Clean Water Act will change very little,” one attorney said.

The legislation, enacted in 1972, has been a bone of contention for developers, farmers, and others who have encountered a mass of confusing regulations and sometimes ham-handed regulators that made obtaining permits a grueling, expensive process.

Those denied permits have contended that the government effectively robbed them use of their land, without compensation. Critics said the act federalized every drop of water in the United States, giving Washington veto power over development that might be miles away from any navigable waters.

Although the stats show that better than 95 percent of permit applications were eventually granted, the time, expense, and hoop-jumping were galling to those applying.

In the Michigan cases, two developers wanted to build a shopping center and condos on land categorized as wetlands. One, whose property was more than 20 miles from the nearest navigable water, flouted cease-and-desist orders and filled in the wetlands. The other property was adjacent to a drainage ditch that was circuitously connected to a lake one mile away.

The Bush administration supported the Clean Water Act and had urged the court not to accept the case, but the justices agreed last fall to hear it.

Chief Justice John Roberts, who voted in the affirmative, said the plurality decision will mean that lower courts and regulated entities “will now have to feel their way on a case-by-case basis.” Justice Antonin Scalia, who also voted for the measure, noted that “the entire land area of the United States lies in some drainage basin,” and said the Corps misinterpreted the law’s language, “stretching the term ‘waters of the United States’ beyond parody.”

Justice John Paul Stephens, who voted against it, said developers “will be confused” about whether to get permits for wetlands work, and that Congress or the Corps of Engineers should clarify the issues, not appointed judges.

“The primary effect…is to require a fact-intensive inquiry on the part of landowners and the Corps. What little guidance can be gleaned is that the facts should be interpreted in light of the purpose of the Clean Water Act — to maintain and restore the nation’s waters. In the end, it is likely that the case will cause increased litigation.”